The Center for Biological Diversity (“the Center”)
submitted a 60-day notice (available here) to the National Marine Fisheries
Service (“Fisheries
Service”) today announcing that the group intends to sue the Fisheries
Service for failing to protect the North Pacific right whale, Eubalaena
japonica, pursuant to the Endangered Species Act (“ESA”).
The Fisheries Service announced on February 20, 2002 that it would, in
lieu of the Center’s request that the agency protect the species’ habitat
immediately, conduct several studies and initiate recovery programs for
the whale. To date, none of the actions or studies have been completed,
the whale’s habitat remains unprotected, and most egregiously,
the limited amount of funding that was dedicated to look for the species
has been spent elsewhere. The Center’s suit will force the Fisheries
Service to protect the species’ habitat by a date certain and encourage
the recovery of the species.

“The Fisheries Service has abdicated its responsibility
to protect this species. The right whale’s resurgence in the Bering
Sea should be a symbol of hope for a region facing ecological collapse,
but the Fisheries Service insists on treating the species like a pariah,” said
Brent Plater, an attorney for the Center. “Instead of following
through on its promises, the Service has actually stopped looking for
this species and actively thwarted research efforts that aim to better
understand the whales. Our country runs the risk of becoming the only
nation to allow a great whale species to go extinct, and it’s happening
on the Fishery Service’s watch.”

The North Pacific Right Whale is the most imperiled whale
on Earth. It is so rare that in the 1980s a sighting of a single individual
was deemed worthy of publication in scientific journals. However, beginning
in 1996 scientists began to see a congregation of Right Whales annually
in a portion of the Southeastern Bering Sea. In 2000, the Center for
Biological Diversity (“the Center”) petitioned the Fisheries
Service to designate that area as “critical habitat” for
the species, a level of protection that the Fisheries Service has determined
is “a necessary component of any effort to conserve and recover
this species.” In response the Fisheries Service declined to protect
any habitat for the whale, and instead announced an ambitious program
to study the whales and implement recovery programs for the species.
Among the promises made were:

• The preparation of a recovery plan. The Fisheries
Service stated that it was “preparing a Recovery Plan for the North
Pacific Right Whale” and that a “draft plan is expected to
be available for public comment in 2002.” However, two years later
no plan has been finalized and a draft plan was never distributed for
public comment.

• Continue research into the biology of the species.
The Fisheries Service stated that it intends to “attempt to satellite-tag
North Pacific right whales” as part of ongoing efforts to protect
essential habitat areas for the species. However, when presented with
an opportunity to conduct satellite-tagging studies at only the cost
of ship time, the Fisheries Service failed to prioritize ship time for
the study, which prevented the study from going forward.

• Continue to survey for the species in the Bering
Sea. The Fisheries Service stated that “recent survey effort[s]
will continue at similar levels,” for the species. However, in
2003, the Fishery Service unilaterally halted all survey efforts for
right whales, effectively ending seven-years of continuous sightings
of the species.

“The fishery service has failed to take the most
basic steps to protect this population,” said Eric Glitzenstein,
an attorney with the law firm of Meyer & Glitzenstein which submitted
the notice of violations of the ESA on behalf of the Center. “There
is no recovery plan for the species, and there is no critical habitat
designated. The Fishery Service’s original justification for its
failure to act was a classic example of arbitrary and capricious decisionmaking,
and the on-going failure to own-up to its promises has made matters all
the worse.”

The Center for Biological Diversity is a non-profit conservation
organization that protects endangered species and wild places through
science, policy, education, and environmental law.

Meyer & Glitzenstein is a public-interest law firm
in Washington D.C. that specializes in litigation under the Endangered
Species Act and other environmental and animal protection laws

Photos, copies of the 60-day notice, and further information
are available online at